2011-12675. Safety Zone; Fleet Week Maritime Festival, Pier 66, Elliott Bay, Seattle, WA

AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is establishing a permanent safety zone extending 100 yards from Pier 66, Elliott Bay, WA to ensure adequate safety during the annual parade of ships and aerial demonstration for Fleet Week. This safety zone is necessary to promote safety on navigable waters and will do so by enforcing vessel movement restrictions in the immediate vicinity of Pier 66, Elliott Bay, WA, immediately prior to, during and immediately following this annual event. Entry into, transit through, mooring, or anchoring within these zones is prohibited unless authorized by the Captain of the Port, Puget Sound or Designated Representative.

DATES:

This rule is effective June 23, 2011. This rule is enforced annually during the parade of ships which typically occurs on a Wednesday during the last week of July or the first week in August from 8 a.m. until 8 p.m; however, it will only be enforced thirty minutes prior to, during, and thirty minutes after the annual parade of ships and aerial demonstration.

ADDRESSES:

Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2010-0062 and are available online by going to http://www.regulations.gov, inserting USCG USCG-2010-0062 in the “Keyword” box, and then clicking “Search.” This material is also available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or e-mail LTJG Ian S. Hanna, Sector Puget Sound Waterways Management Division, Coast Guard; telephone [phone], e-mail [e-mail]. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Regulatory Information

On February 25, 2010 we published a notice of proposed rulemaking (NPRM) entitled “Safety Zone; Fleet Week Maritime Festival, Pier 66, Elliott Bay, Seattle, WA” in the Federal Register (75 FR 037). We received 72 comments on the proposed rule. We made changes based on those comments, and on November 24, 2010 we published a supplemental notice of proposed rulemaking (SNPRM) with the same title in the Federal Register (75 FR 226). We received 110 comments on the SNPRM. Seven comments requested a public meeting. We did not hold a public meeting on this rule.

Basis and Purpose

The U.S. Coast Guard is establishing a permanent safety zone extending 100 yards from Pier 66, Elliott Bay, WA to restrict the movement of vessels, thirty minutes prior to, during, and thirty minutes following the annual parade of ships and aerial demonstration, thereby ensuring participant and spectator safety.

Background

The Fleet Week Parade of Ships has historically resulted in vessel congestion near Pier 66, Elliott Bay, WA which adversely compromises participant and spectator safety. This safety zone is necessary to direct the movement of vessels in the vicinity of Pier 66 establishing unobstructed traffic lanes for response craft in the event of an emergency and ensuring participant, spectator and maritime safety. The Captain of the Port, Puget Sound may be assisted by other Federal and local agencies in the enforcement of this safety zone.

Discussion of Comments and Changes

The regulatory text of this Final Rule is the same as the regulatory text of the Supplemental Notice of Proposed Rulemaking; no changes have been made to this regulation since the SNPRM. Twenty-four comments received were outside of the scope of this rulemaking.

Seven requests for a public meeting were received. The Coast Guard does not plan to hold a public meeting. Public comment on proposed rules is an essential component of the notice-and-comment rulemaking process established by the Administrative Procedures Act (APA). An opportunity for oral presentations at public meetings may be offered but is not required. The Coast Guard has determined the two comment periods for this rule combined with numerous means available for public comment has provided adequate and sufficient time for the public to express their concerns without necessitating a public meeting. The original NPRM received over 70 comments, which were received, considered and resulted in changes to the regulation as reflected in the SNPRM. The SNPRM further allowed for public comment on this rule and received 110 comments.

Ten comments articulated reasons to hold a public meeting. The purpose of a public meeting is to provide the public the opportunity to provide comment on complex and technical issues that are difficult to articulate in written public comment. Public meetings do not include an argumentative dialogue on proposed regulations. Many of the reasons submitted ask for this kind of dialogue that the government is not allowed to engage in at a public meeting. All the comments received have been direct and easily understood. Therefore there would be no added benefit in holding a public meeting.

One comment stated that the Coast Guard could not have chosen a worse time for public comment as it occurred during a time of major U.S. holidays. The Coast Guard received 110 comments on this SNPRM and 72 comments on the NPRM for this rule. The Coast Guard has determined that these methods of comment have properly provided ample opportunity and sufficient time for the public to comment on this regulation. Operational demands and rulemaking procedures dictated the timeline of publication of this rulemaking. The abundance of comments indicates the target audience has been notified and given the opportunity to comment.

Six comments stated opposition to this regulation. The Coast Guard appreciates the reasons behind the opposition of this rule. However, this regulation is necessary to uphold agency responsibilities of promoting safety of life on navigable waters.

Ten comments stated that this regulation infringes on First Amendment rights to free speech. This regulation establishes a safety zone to promote safety of life on navigable waters. The Coast Guard is authorized to create safety zones in accordance with 33 CFR 165.20 for safety purposes. The Captain of the Port has identified a potential navigation safety problem between spectator craft and participants of the Fleet Week Parade of Ships, and this zone is designed to address that safety problem. The minimal size of this safety zone will enable displays of free speech in visibly accessible areas to take place immediately north and south of the zone along the pier. Typically spectators gather at the parade viewing area at piers 66 and 63 well before the parade. In years past, any on water protest activities have had the full attention of the spectators prior to the parade. The Coast Guard believes that this proposed safety zone is small enough in size and short enough in duration that it will not hinder or impact demonstrations of free speech. Protest, spectator, and other vessels may congregate in the vicinity of Pier 66 while spectators are assembling and dispersing from this event and this safety zone is not enforced. Furthermore, an alternate protest area is available outside of this safety zone in places which are visually and audibly accessible to spectators during the parade and aerial demonstration while this safety zone is being enforced. This includes the area directly to the south of the safety zone in front of the public Pier 63 where many of the event spectators are gathered. Pictures posted to the docket clearly show protesters in this area which is visible not only to the people gathered at Pier 63 but also clearly visible from the review stand at Pier 66.

Eleven comments stated the effect of this regulation is to deny the public the opportunity to provide a visual protest to the Navy war ships at SeaFair, in the place and during the time that the protest is most visible. The Coast Guard believes that this safety zone is small enough in size and short in duration that it will not hinder protest activities. Small boats may congregate in the vicinity of Pier 66 while spectators are assembling and dispersing from the parade of ships while this safety zone is not enforced. During this time much of the audience is already gathered. Alternative channels for expression during the parade include the area immediately north and south of this zone where protestors will remain visible and audible to other spectators watching from Pier 66. Additionally, any place on the pier is open to protest activities.

Eight comments stated that safety is not an issue during the parade, and state that they believe the zone is a no protest zone. The Captain of the Port, Puget Sound has a legitimate safety concern with the converging of large vessels participating in the Parade of Ships and smaller vessels that gather for the event. The vessels in the parade of ships that approach Pier 66 during the parade create large wakes and some even shoot water from fire monitors, both of which pose a significant threat to any small vessels that may be gathered in front of Pier 66. Additionally, the aerial demonstration following the parade requires a clear area for the safety of the demonstrators and the small vessels gathered for the parade. Also, were an accident to occur during the parade, emergency response craft would need to transit quickly into the area. Small vessels gathered in front of Pier 66 pose a threat to event participants and themselves if they gather in certain spots. This zone is meant to delineate to all parties involved where the danger area is during the parade event and keep people clear of it.

Seven comments, including three photographs, state that there has not been any vessel congestion near Pier 66 during this event. Vessel congestion does not necessarily mean that many vessels are gathered. When one or more small spectator vessels are gathered in front of Pier 66 and significantly larger parade participant vessels approach close to the pier, the area would become congested and unsafe. This is because the larger vessels have limited maneuverability when they are near the pier, and the smaller vessels may be too underpowered to maneuver quickly to be able to get themselves out of harm's way. Also historically, more vessels have gathered for the parade than did in 2010 and it is reasonable to plan for the gathering of more vessels.

Five comments stated the revisions to the enforcement times are ambiguous. The effective period for this rule is larger than the enforcement period to allow for slight yearly fluctuations in scheduling for this annual event while enabling opportunity for public comment, providing ample public notice, and codifying this regulation. Yearly announcements indicating the exact date and time of the Parade of Ships will be published in the Local Notice to Mariners. One comment requested clarification on what “thirty minutes prior to the beginning, during and thirty minutes following the conclusion of the parade of ships” means. This regulation will be enforced beginning thirty minutes before ships arrive at Pier 66 for the review portion of the parade, during the review, and, if needed, thirty minutes following the completion of the parade of ships review, which may include an aerial demonstration. For the purposes of this regulation, the beginning of the Parade of Ships is identified by the first participant vessel approaching Pier 66.

Nine comments stated an increase in size of 40% from the safety zone described in the NPRM. The safety zone described as extending 100 yards from Pier 66, is the same as in the NPRM. Any slight increase in size is due to increased accuracy in GPS coordinates to assist in technical plotting of this data. The practical application of the physical description of this zone is not affected by these changes since the description has remained unchanged.

Two comments stated the Coast Guard usually enforces a “no-protest zone” to keep demonstrators approximately 450 yards from Pier 66. The Coast Guard would like to clarify any confusion regarding this regulation and previous years' regulations by emphasizing that the safety zone in this regulation extends only 100 yards from Pier 66, enforced 30 minutes prior to, during and 30 minutes following the parade of ships and aerial demonstration. The evolution of the safety zone for this annual event has resulted in smaller safety zones to better accommodate all waterway users while promoting safety on navigable waters. In addition, during this event each Navy ship has a Naval Vessel Protection Zone (NVPZ; 33 CFR 165 Subpart G) surrounding it. The NVPZ is a moving zone around each Navy ship that establishes a 100 yard no entry zone and 500 yard no wake zone. This may result in a combined exclusion area of the NVPZ and the 100 yard safety zone during times of a close approach and departure from the pier. The coupling of these zones could result in the appearance of a larger zone being enforced; however, they are two separate zones. Similarly, another comment stated that the proposed zone was enforced for five days in 2010 instead of the published few hours. The zone that was enforced for multiple days in 2010 was the NVPZ around the USS KIDD that was moored at Pier 66 for the duration of Fleet Week. The 100 yard safety zone which will be permanently established by this Final Rule will only be enforced for a few hours on the day of the Parade of Ships.

One comment stated if the public is genuinely at risk, then the fleet should conduct its naval celebration somewhere else. The public is only at risk if located within this safety zone while this event is taking place; therefore it is reasonable to place temporary vessel movement restrictions in this area for this short period of time to ensure maritime safety.

One comment stated the revised proposed rule is essentially the same as the first proposed rule. The Coast Guard introduced changes to this regulation in the SNPRM to include revisions to the enforcement dates, times and location for this safety zone in response to the 70 comments received on the NPRM. The reasons for issuance and the safety concerns mitigated by this rule remain unchanged.

One comment requested acknowledgement of their comment be sent via mail to the sender. The Coast Guard understands and empathizes with your concern; however, public comments made via regulations.gov are posted, publicly accessible and result in a tracking number, thereby providing notice of receipt of your comment. Additionally, the Coast Guard cannot accept the administrative burden associated with notification of individual receipt of comments, especially when notification has already been provided via this Web site.

Two comments stated that the www.regulations.gov Web site would not accept the video file format desired for submission of videotape footage. Comments may be submitted in numerous ways. Although regulations.gov did not support the file format for the video comment, other means remained available to submit the video to the docket. Four methods for submitting comments have been detailed in both the NPRM and the SNPRM: the Federal eRulemaking Portal, fax, mail and hand delivery.

One comment stated that mailing videos to the address provided in the proposed rule does not necessarily mean the videos would be entered into the record. The APA requires all received public comments and documents to be entered into the docket and responded to via subsequent rulemaking documents in the regulatory process.

One comment stated the Coast Guard failed to follow-through on personally contacting a citizen to notify them of publication of this regulation. The Coast Guard has complied with the APA in drafting and informing the public of this regulation. We exceeded these requirements by issuing a press release to notify and solicit public participation and comment on the SNPRM.

Two comments stated the proposed rule was not narrowly tailored to meet a legitimate government interest. The revisions made in the SNPRM including refinement to limit the time of enforcement of this safety zone has resulted in the most minimal zone in size and duration to adequately provide safety for all waterway users during this event. Additional narrowing of the zone would adversely affect efficient staging of the on-scene patrol vessels to enforce this safety zone thereby decreasing the effectiveness of this zone to ensure safety.

Initial Enforcement

The Coast Guard will enforce the safety zone in 33 CFR 165.1330 on August 3, 2011. The zone will be active from 8 a.m. until 8 p.m. and be enforced thirty minutes prior to, during, and thirty minutes following the Parade of Ships which will occur at approximately 2 p.m.

Regulatory Analyses

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

Regulatory Planning and Review

This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. This rule is not a significant regulatory action because it is short in duration and minimal in size.

Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit the safety zone during times of annual enforcement. This safety zone will not have a significant impact on a substantial number of small entities for the following reasons. This safety zone will be activated and thus subject to enforcement for a short duration and is minimal in size.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), in the NPRM we offered to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

Collection of Information

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

Civil Justice Reform

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

Protection of Children

We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

Indian Tribal Governments

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

Energy Effects

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

Technical Standards

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g.), of the Instruction. This rule involves a safety zone extending 100 yards from Pier 66, Elliott Bay, WA which will be activated and thus subject to enforcement, 30 minutes prior to and 30 minutes following scheduled annual parade of ships events. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

• Harbors
• Marine safety
• Navigation (water)
• Reporting and recordkeeping requirements
• Security measures
• Waterways

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR Part 165, as follows:

PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

1. The authority citation for Part 165 continues to read as follows:

Authority: 33 U.S.C. 1231; 46 U.S.C. Chapters 701; 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

2. Section 165.1330 is added to read as follows:

§ 165.1330

Safety Zone; Fleet Week Maritime Festival, Pier 66, Elliott Bay, Seattle, Washington.

(a) Location. The following area is a safety zone: All waters extending 100 yards from Pier 66, Elliott Bay, WA within a box encompassed by the points, 47°36.719′ N, 122°21.099′ W; 47°36.682′ N, 122°21.149′ W; 47°36.514′ N, 122°20.865′ W; and 47°36.552′ N, 122°20.814′ W.

(b) Regulations. In accordance with the general regulations in 33 CFR Part 165, Subpart C, no vessel operator may enter, transit, moor, or anchor within this safety zone, except for vessels authorized by the Captain of the Port or Designated Representative, thirty minutes prior to the beginning, during and thirty minutes following the conclusion of the Parade of Ships. For the purpose of this rule, the Parade of Ships includes both the pass and review of the ships near Pier 66 and the aerial demonstrations immediately following the pass and review. The Captain of the Port may be assisted by other federal, state, or local agencies as needed.

(c) Authorization. In order to transit through this safety zone, authorization must be granted by the Captain of the Port, Puget Sound, or their Designated Representative. All vessel operators desiring entry into this safety zone shall gain authorization by contacting either the on-scene U.S. Coast Guard patrol craft on VHF Ch 13 or Ch 16, or Coast Guard Sector Puget Sound Joint Harbor Operations Center (JHOC) via telephone at [phone]. Requests shall indicate the reason why movement within the safety zone is necessary and the vessel's arrival and/or departure facility name, pier and/or berth. Vessel operators granted permission to enter this safety zone will be escorted by the on-scene patrol until no longer within the safety zone.

(d) Enforcement Period. This rule is enforced annually during the parade of ships which typically occurs on a Wednesday during the last week of July or the first week in August from 8 a.m. until 8 p.m. unless cancelled sooner by the Captain of the Port.

Dated: May 9, 2011.

S.J. Ferguson,

Captain, U. S. Coast Guard, Captain of the Port, Puget Sound.